Monday, October 31, 2005

Patterico On Alito, Alito On O'Connor

Judge Alito’s decision was well-reasoned, restrained, and respectful of precedent. He indicated no policy preference and wrote no memorable, fire-breathing lines in the dissent. He simply tried to apply the law as he understood it, with a proper respect for the difference between legislators (who make laws) and judges (who interpret and apply laws).

The amusing thing is that Alito quoted O'Connor extensively in assessing "undue burden":

A. Justice O’Connor has explained the meaning of the term “undue burden” in several abortion opinions. In Akron v. Akron Center for Reproductive Health, 462 U.S. at 464, 103 S.Ct. at 2510 (O’Connor, J., dissenting), she wrote that “an ‘undue burden’ has been found for the most part in situations involving absolute obstacles or severe limitations on the abortion decision.” She noted that laws held unconstitutional in prior cases involved statutes that “criminalized all abortions except those necessary to save the life of the mother,” inhibited ” ‘the vast majority of abortions after the first 12 weeks,’ ” or gave the parents of a pregnant minor an absolute veto power over the abortion decision. Id. (emphasis in original; citations omitted). She suggested that an “undue burden” would not be created by “a state regulation [that] may ‘inhibit’ abortions to some degree.” Id. She also suggested that there is no undue burden unless a measure has the effect of “substantially limiting access.” Id. at 463, 103 S.Ct. at 2509, quoting Carey v. Population Services International, 431 U.S. 678, 688, 97 S.Ct. 2010, 2017, 52 L.Ed.2d 675 (1977) (emphasis added in Justice O’Connor’s opinion).

Justice O’Connor reiterated the same analysis in Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 106 S.Ct. 2169 (1986). She wrote (id. at 828, 106 S.Ct. at 2214 (O’Connor, J., dissenting), quoting Akron, 462 U.S. at 464, 103 S.Ct. at 2510 (O’Connor, J., dissenting)):An undue burden would generally be found “in situations involving absolute obstacles or severe limitations on the abortion decision,” not wherever a state regulation “may ‘inhibit’ abortions to some degree.”

She also criticized the majority for taking an approach under which “the mere possibility that some women will be less likely to choose to have an abortion by virtue of the presence of a particular state regulation suffices to invalidate it.” Id. 476 U.S. at 829, 106 S.Ct. at 2214 (emphasis added).Justice O’Connor’s application of the undue burden test in several cases further illustrates the meaning of this test. In Hodgson, 110 S.Ct. at 2950-51, Justice O’Connor found that no undue burden was imposed by a law requiring notice to both parents or judicial authorization before a minor could obtain an abortion. Justice O’Connor reached this conclusion despite statistics adduced by Justice Marshall to show that mandatory parental notice may inhibit a significant percentage of minors from obtaining abortions (id. at 2953-54) (Marshall, J., dissenting) and despite the district court’s finding, noted in Justice Marshall’s dissent, that the judicial bypass option “so daunted” some minors that they felt compelled to carry to term (id. at 2959, quoting 648 F.Supp. at 763).

I know that all this is political. Still, it amuses me to think that a decision relying on O'Connor's legal interpretations in the matter of abortion will be cited as a reason why Alito is unfit to replace her.

NARAL is having a cow, but I find their arguments (pdf 3pgs ) unconvincing. They cite three cases. The second I have discussed above, but NARAL omits to quote the actual reasoning for his dissent so that you do not get the idea that he was quoting O'Connor. In the third they don't like the reasons why he supported abortion rights.

Alito also voted to strike down part of an anti‐choice state law, but the decision was based on administrative law not reproductive‐rights law.In Elizabeth Blackwell Health Center for Women v. Knoll,10 Alito was part of a 2‐1 majority that invalidated two requirements of an anti‐choice Pennsylvania law which made it more difficult for low‐income women to receive funding for medically necessary abortion services. First, the court invalidated a requirement that a low‐income woman who is the victim of rape or incest report the crime to police, including the identity of the offender, in order to receive funding for her abortion. Second, the court invalidated a requirement that the fatal danger to a low‐income woman seeking an abortion as a result of a life‐endangering pregnancy must be certified by two doctors in order for her to receive funding for her care.

This I have to find, because it seems quite consistent with Alito's legal reasoning for writing the dissent in Planned Parenthood V Casey.

The first is similar - Alito concurred with the majority, but they don't like his legal reasoning for doing so:

In Planned Parenthood of Central New Jersey v. Farmer,3 Alito specifically refused to join the court’s majority opinion, distancing himself from the legal reasoning that would have struck down the statute by applying Roe v. Wade4 and Planned Parenthood of Southeastern Pennsylvania v. Casey.5 Alito makes clear that his concurrence is compelled solely by the Supreme Court’s decision in Stenberg v. Carhart,6 which found a nearly identical Nebraska law unconstitutional. Alito explains that Stenberg “dictates” the result in Farmer,7 but, by writing separately, Alito appears to believe that Roe and Casey did not require the same result. The health exception is a fundamental tenet of Roe v. Wade, and the Supreme Court is scheduled to revisit the constitutional requirement for the health exception this fall. Should Alito replace Sandra Day O’Connor, a fundamental right will likely be lost by next summer.

They seem to be complaining about which precedent he thought most important. Are you following me?The three cases forming the basis for their disapproval of Alito consist of two "pro-choice" concurrences and one dissent heavily based on O'Connor's own writings. On this basis, they have a flaming red banner across their website with the words "Stop Anti-Choice Alito". This is the letter they want you to send:

As your constituent, I am urging you to oppose the nomination of Judge Samuel Alito to the Supreme Court.

In choosing Samuel Alito, President Bush has caved to the demands of his right wing. Alito's record indicates a clear willingness to continue dismantling our constitutional freedoms. The American public deserves a nominee who can be counted on to uphold our rights - not take them away.

Personally, I'm concerned with a nominee who will enforce the actual wording of the Constitution. I think the American public is really concerned with someone who wouldn't agree with Raich and Kelo.

I think it is more at where he set the bar on choice cases which is quite high. Specifically, it would have to be a veto on the right. He would consider no other factor as a burden.

Additionally, in Planned parenthood, he said that the law would have been constitutional if it included abortion for to save the life of the mother - meaning the legislature could write that in and he would vote for it next time.

So, neither were pro-choice votes per-se. He basically sid he would vote against them if the laws were tweeked.